Atnip v. Hinkle

• Decision Date: 05 January 1924
• Docket Number: (No. 10476.)
• Parties: ATNIP v. HINKLE et al.
• Court: Texas Court of Appeals

258 S.W. 860

ATNIP v. HINKLE et al.

(No. 10476.)

Court of Civil Appeals of Texas. Fort Worth.

January 5, 1924.

Appeal from Clay County Court; R. Loftin, Judge.

Action by A. G. Atnip against I. B. Hinkle and C. B. Jackson, as administratrix of the estate of J. S. Jackson, deceased. From judgment for defendants in the county court on appeal from justice court, plaintiff appeals. Reversed and remanded.

J. P. Williams, of Petrolia, H. M. Muse, of Henrietta, and C. O. Taylor, of Wichita Falls, for appellant.

Stine & Stine, of Henrietta, for appellees.

CONNER, C. J.

This suit was instituted in a justice court by A. G. Atnip against I. B. Hinkle and Mrs. C. B. Jackson, as administratrix of the estate of J. S. Jackson, deceased, to recover the sum of $191.25 "for labor performed by the plaintiff for the defendants * * * and for wrongful discharge while plaintiff was endeavoring to procure employment." The trial in the justice court resulted in favor of the plaintiff for the sum stated, and the defendants appealed to the county court.

Upon the call of the case in the county court, the defendants, as recited in the county court's judgment, presented "an exception to plaintiff's petition and pleading made to the jury for the reason that the same did not allege that the plaintiff's claim had been presented to the administratrix of the estate of J. S. Jackson, deceased, and the same rejected before the suit was filed." The judgment further recites that upon the hearing of the exception it was sustained, and the plaintiff's case was accordingly dismissed, from which judgment the plaintiff Atnip has appealed.

We have presented for consideration a single assignment only, which thus reads:

"The court erred in sustaining the defendants' demurrer to the plaintiff's pleading, wherein said defendant demurred to the failure of the plaintiff in not having presented his said claim to the administratrix of the estate of J. S. Jackson, deceased, for her approval or disallowance for the reason that said plaintiff was not required to present said claim for approval or disallowance under article 3455, Vernon's Sayles' 1914 Civil Statutes."

The record is not in a condition to enable us to very satisfactorily dispose of the appeal. There is no pleading contained in the transcript of either the plaintiff or the defendants, except a pleading by the plaintiff entitled "a trial amendment," to the effect that he —

"did not present his said claim for labor performed under and by virtue of a certain contract entered into, nor for damages by reason of the breach of the same, by and between the plaintiff and the defendants I. B. Hinkle and Mrs. C. B. Jackson, administratrix of the estate of J. S. Jackson, deceased, as provided for in articles 3499 and 3442, Vernon's Sayles' 1914 Civil Statutes, because said contract was entered into by and between the administratrix of the estate of J. S. Jackson, deceased, and the plaintiff herein after letters of administration had been granted, as provided for in article 3455, Vernon's Sayles' 1914 Civil Statutes, which does not require the presentation of claims which accrue against the estate after the granting of said letters, which said contract was, in this case, entered into long after the contract was made."

Article 2326, Rev. Statutes, provides that:

"The pleadings in the justices' courts shall be oral, except where otherwise specially provided; but a brief statement thereof may be noted on the docket."

Our Supreme Court, in the case of H. & T. C. Ry. Co. v. Southern Cement Co., 112 Tex. 139, 245 S. W. 644, holds...